Eight points made clear by the Supreme People's Court's interpretation on medical injury

The Supreme People's Court's Interpretation on Several Issues concerning the Application of Law in the Trial of Cases of Disputes over Liability for Medical Injury has been in force since 14 December 2017. Running to 26 articles, it explains the difficult and important points that have arisen in the trial of medical disputes in recent years, and makes clear how the law applies to the burden of proof, the appraisal procedure, the constituent elements of liability, and the bearing of liability. Which specific questions in medical disputes does the Interpretation regulate, and what effect does it have on the parties? This article sets out in detail how it affects the handling of medical disputes in practice.

1. It makes clear the law applicable to cosmetic medicine

Article 1 of the Interpretation makes clear that cosmetic medicine falls within the scope of "diagnosis and treatment", that a dispute arising from an act of cosmetic medicine falls within the scope of liability for medical injury and is governed by the rules on that liability, and so distinguishes it from cosmetic treatment that is not medical.

Under the Detailed Rules for the Implementation of the Regulations on the Administration of Medical Institutions and the Measures for the Administration of Medical Cosmetology Services, the techniques of cosmetic medicine are traumatic and invasive, and an institution carrying it on must meet the standards for a medical institution and obtain a licence to practise as one.

2. It makes clear the burden of proof on each side

As to the burden of proof in medical disputes, from the reversal of that burden that most people could recite, through the adjustment made when the Tort Liability Law came into force, and down to the issue of the Interpretation, there was still much argument over how it should be allocated between doctor and patient in a dispute over technical medical injury, in particular who should prove whether the medical institution was at fault and whether there was causation, and whether the Provisions of the Supreme People's Court on Evidence in Civil Procedure, in force since 2002, still applied.

The Interpretation confirms further that where a patient suffers injury in the course of diagnosis and treatment, the principle of liability based on fault applies. The patient must adduce evidence of the result of the injury, of fault in the diagnosis and treatment, and of causation between that treatment and the injury. It follows that the party applying for a medical injury appraisal is the patient.

3. It makes clear what medical records a medical institution must produce, and by when

Under the Tort Liability Law, where a medical institution refuses to provide the medical records relating to the dispute, the court may presume that it was at fault. But there was no precise standard for what counted as "refusing to provide", or for what "medical records" comprised. The Interpretation provides that the time within which a medical institution must provide the records is fixed by the People's Court, and that exceeding it is treated as "refusing to provide", so that fault is presumed.

As to what the medical records comprise, the Interpretation is broadly consistent with the Provisions on the Administration of Medical Records in Medical Institutions, covering out-patient records, records of surgery and anaesthesia, and test and examination reports, and it adds "medical expenses".

4. It strengthens the expert's duty to attend and give evidence, and makes clear the system of expert assistants

Because medical injury disputes are highly specialist, the appraisal opinion often decides the outcome of the case, and its conclusion is usually adopted by the judge directly. Cross-examination of an appraisal opinion does not achieve what cross-examination at trial should, by comparison with other evidence, and it is very hard for a party to put forward any substantive challenge, because the parties, and above all the patient, have no medical background and little capacity to prove their case.

The Interpretation makes clear the system of expert assistants: a person with specialist medical knowledge attending court strengthens the patient's ability to challenge the appraisal opinion, makes good his lack of expertise, and puts doctor and patient on a more equal footing in the dispute.

5. It makes clear the effect of an appraisal commissioned by a party itself

When a dispute arises and relations between doctor and patient break down, a party may, out of distrust, poor communication or the other side's want of cooperation, commission an appraisal institution on its own. The procedure is then irregular and the basis for the appraisal one-sided, so that the conclusion tends to favour the party that commissioned it. As to such an opinion, the Interpretation makes clear that it may be admitted if the other parties accept it. In other words, an appraisal opinion commissioned by a party itself is in substance of no effect.

6. It makes clear when emergency treatment may be given

Article 56 of the Tort Liability Law provides that in an emergency such as the rescue of a patient in a critical condition, where the opinion of the patient or of his close relatives cannot be obtained, the corresponding medical measures may be taken immediately with the approval of the person in charge of the medical institution or a person authorised by him. In practice, however, there was considerable disagreement over how to determine that the opinion "cannot be obtained": where there are many relatives and their views differ; or where they give no clear attitude to the proposed treatment, or refuse to sign, so that the doctor is left holding the consent form in a dilemma, facing an action whichever course he takes.

The Interpretation makes clear that where the close relatives refuse to express an opinion or cannot reach agreement, and the medical staff carry out the medical measures with the approval of the person in charge of the medical institution, they bear no liability for compensation.

7. It makes clear the standard of compensation where one result has several causes

Because of changes in the patient's condition, the limits of medical resources and other reasons, several medical institutions may take part in the whole course of treatment: where the condition worsens and the patient is transferred from a lower-level to a higher-level hospital, for instance, or where the illness recurs over a long course and the patient is treated at several institutions. The Interpretation provides that where two or more medical institutions should bear liability, responsibility is apportioned under the Tort Liability Law as for joint tortfeasors. As to the standard for calculating compensation for disability and for death, where the institutions are in different places, the higher standard applies.

8. It makes clear that punitive damages apply to defective medical products

The Interpretation establishes for the first time that where a defect in a medical product causes death or serious injury, punitive damages of up to twice the loss suffered may be claimed.

The rules in context

On the application of the rules for appraising medical injury

The part appraisal plays in a medical dispute hardly needs stating, yet the procedure and the institutions used differ from place to place. Although every place distinguishes appraisal of medical injury from appraisal of a medical accident, in practice the two are confused: the procedure for medical accidents is applied to medical injury, and there is excessive reliance on the medical association as the appraising body, to the neglect of other forensic appraisal institutions, so that appraisals queue, time limits are drawn out, and disputes are not resolved promptly.

From the Supreme People's Court's notice on several issues concerning the application of the Tort Liability Law of the People's Republic of China it appears that the appraisal of medical injury should follow the rules of forensic appraisal, and that the appraising institution is not confined to the medical association. But as there was no direct and express provision, understanding differed from place to place and practice diverged. Before the Interpretation was issued, Jiangsu Province had enacted the Regulations of Jiangsu Province on the Prevention and Handling of Medical Disputes, which made clear that both the medical association and a qualified forensic appraisal institution may carry out the appraisal of medical injury, and that no institution is subordinate to another. The provisions of those Regulations accord with the purpose of the Tort Liability Law, and for the first time set out in detail and with precision the difference between the two kinds of appraisal and regulate the procedure. The Interpretation, though it does not go further on the appraising institution, emphasises the concept of the professional appraiser; the appraisal of medical injury will therefore in future tend towards the choice of the expert rather than be confined to particular institutions.

From a medical association specially established in each place, out to forensic appraisal institutions generally, and on to breaking the limits of institution and putting forward the concept of the professional appraiser, this shift in the model of medical appraisal relieves the pressure on some institutions, improves the efficiency of appraisal, and means that this special kind of evidence is no longer "absolutely authoritative", giving the parties more room to challenge it.